norml11 - Page 67
Page 67
Previous ,
Next ,
Original Image
Return to Index
Discussion
The Act, at 21 U.S.C° §.81.2(b)(l)(C), requires tha, C marijuana be. retained
in Schedule i if _[t]here is a']ack of accepted_safety for use of [it] under
medical supervision." If there is no lack of such safety, if it is accepted
that this: substance can be used w_th safety under:i_edi(:al supervision, .then it
L
_s unreasonable to keep it in Schedule [. - .
Again we must ask - "accepted" by whom? In the MONA proceeding the Agency's
first Final Rule decided that _accepted '_ here meant, as in the phrase "accepted
medicaiuse is treatment '', that the FDA had accepted the substance pursuant to
the provisions of the Food, Drug and Cosmetic Act. 5_ Fed. Reg. 36555 (1986).
The Court of Appeals held that this was error. On remand, in its third Final
Rule-on MONA, the Agency made the same ruling as before, relying essentially on
the same findings, and on others of similar nature, just as it did with respect
to "acceP.ted medical use." 53 Fed. Rego 5]56 (1988).
The administrative law judge finds himself constrained not to follow the
rationale in that NDMA third Final Order for the same reasons as set out above
in Section V with respect to _accepted medical use" in ontology. See pages 30
to 33. Bi-iefly, the Agency was looking primarily a't the results of scientific
tests and studies rather than at what physicians had° in fact, accepted. The
Agency was wrongly basing its decision on a judgement as to whether or not
"doctors o_uoht to have accepted the substance in question as safe for use under
medical supervision. The criteria the Agency applied in the NDMA third Final
Rule are inapp_'opriate. The only proper question for the Agency here _s: Have a
significant, minority of physicians acce.t_ marijuana as safe for use under
medical supervision?
- 65
Previous ,
Next ,
Return to Index